The otherwise benevolent Supreme Court of India shocked not only the nation but the international community as a whole, by confirming the deportation of Rohingya refugees into the deadly territory of Myanmar, into the mouth of persecution.

The Myanmar Government’s treatment of the Rohingyas has been best described as a textbook example of ethnic cleansing by the United Nations. The UNHCR has expressed their concerns multiple times backed by fragmented voices of the global community. Myanmar has denied citizenship to the Rohingyas since its independence in 1948. The Rohingyas despite claiming Burmese descent have found them excluded by the 1982 citizenship law, the 2014 census and the list of national ethnic groups of the country. If India’s stance is to be believed, then this government, as of today, stands ready to embrace a community that has no documentary footprint in its history.

Violence against the Rohingyas was never a novel element for the country. The mineral-rich Rakhine region regularly saw clashes between the government and the people. However, it was the year 2012 that first saw a strategic eviction plan in place, According to official figures, more than 200 Rohingyas were feared dead and 150,000 were rendered homeless, at the first instance. The single largest state retaliation unfolded in 2016 as a response to an alleged attack on the border police force. This resulted in the beginning of an exodus of 87,000 Rohingyas to neighbouring Bangladesh.

From there onwards, it has only been an upward spiral, with people continuing to flee to countries like Bangladesh, Malaysia, Indonesia and Thailand by rickety boats via the waters of the Strait of Malacca and the Andaman Sea, often with the aid of traffickers and smugglers. Some have proceeded to India through Bangladesh and have settled in the cities of Srinagar, Delhi and Hyderabad. While Bangladesh has constantly been in dialogue with the world community and houses the largest Rohingya camp in the world, the stance of India has been significantly tight-lipped. And when it did finally decide to adopt one, the result bought more shock than solace to everyone involved.

India has cited reasons of national security as grounds for refusing to accommodate the Rohingyas. Legally speaking, the government has stated its (lack of) relationship with the UN Refugee Convention 1955 and the Additional Protocol of 1967 as grounds why obligations of non-refoulement cannot be imposed on it. The fact that India is neither a party nor a signatory insulates it from any responsibility. However, jurists and lawyers have argued that non-refoulement, as a principle is now a part of the customary international law, which makes it absolute irrespective of a state party’s relationship with the Refugee Convention.

Exceptions do exist to the principle, but there is no uniform State Practice on the treatment of these exceptions, even prior to the period of codification of the norm. Non-Refoument in the 1951 Convention has two exceptions. One for public order and the second, and most vaguely framed, is that of national security. The second exception is the one used by India to support its decision of expulsion.

The public order exception applies to “a refugee . . . who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”The requirement of a conviction at final judgment establishes an initial threshold before the exception can be applied. Once the final conviction has been established, the Article on its face calls for a determination that the individual poses a future threat to the community.

This is to be seen in contrast to the national security exception which contains a single test: are there “reasonable grounds for regarding the refugee in question as a danger to the security of the country” of refuge? This test requires ‘reasonable grounds’ as opposed to ‘final determination by a court’ threshold which is present in the public order exception. Scholars Lautherpacht and Bethlehem point out, Article 33(2) does not identify the types of acts that could trigger the national security exception but rather leaves that to the discretion of the states, allowing for the possibility of broad and often misplaced application.

This has been the case with India, where the government claims that the fourteen thousand (official figures as of September 2017) Rohingya refugees settled in different parts of India are prone to forming alliances with Islamic terrorist organizations, forming a threat to national security. However, there has been no conclusive proof given for the same. The government relies on isolated incidents of small-scale violence in the Kashmir valley by Rohingya youth, however, the authenticity of the very reports are not beyond doubt.

“We don’t want to leave India. Where will we go?” said Mohammed Harun, a 47-year-old Rohingya elder in Delhi. “There are refugees from other countries in India too. Why are we being targeted? Why do they send us to jail? It is only because we are Muslims. They don’t do this to the other refugees.” – The Asahi Simbun, Asia and Japan Watch

Despite having a de facto refugee regime, India had always carried a reputation of being a safe haven for people fleeing persecution. In the year 2000, India had hosted a total of 292,100 refugees from Tibet, Sri Lanka, Myanmar, Bhutan, Afghanistan and other countries in Africa and West Asia. During the liberation of Bangladesh from Pakistan in 1971, India alone hosted a total of 9,544,012 officially recorded refugees from Bangladesh, depicting an unparalleled flow of refugees in modern history. Why then would such a discrepancy in practice occur now?

The Indian Government has recently towed the line of Israel’s ‘Right to Return’ law in redrawing the laws of citizenship for India. Among the various clauses of the Prime Minister’s election agenda, there stood a prominent one on the refugee policy of India. ‘ This country would be a natural home for persecuted Hindus’, and that would be achieved by granting citizenship to Hindu refugees, especially Hindu-Bangladeshis, who could finally breathe beyond the walls of migrant camps in the Northeastern states of India.

Coinciding interestingly with this change in de facto refugee reception, was India’s Citizenship Amendment Bill 2016 which promises to make India a safe haven for refugees from Hindu, Christian, Parsi, Jain, Sikhs and Buddhists from the neighboring countries, conspicuously leaving out the Muslim population who face persecution like the Ahmaddiya Muslims of Pakistan, Uighur Muslims of China or the Rohingyas of Myanmar. A closer inspection of the provisions reveals its far from the secular character which is problematic not only on a political front but also on a legal one. The bill potentially violates the basic structure of the Indian Constitution by compromising on the Right to Equality as guaranteed under Art 14.

The passage of this bill, in its current form, is set to affect over 200,000 Hindus from Pakistan and Bangladesh. Their migration into the border states of India would change the demographics of the North East, which so far has been a non-Hindu region demographically.

While the Indian Government has constantly shrugged off legal obligations, a look into the judicial history says otherwise. The Rohingya Refugee Case officially known as Mohammad Salimullah vs Union of India was not the first of its kinds to appear before the Indian Judiciary. The Supreme Court in 1984, in Gramophone Company of India Ltd vs Birendra Pandey expressly stated that the comity of nations required that rules of international law be accommodated in the municipal law even without express legislative sanction provided they do not clash with the Acts of the Parliament. This was upheld multiple times through a series of case laws across the country. In so far as refouling refugees to the face of danger is concerned, the Supreme Court before Salimullah did not have a direct brush with the question. However, the Gujarat High Court had a clear stance which was adopted in K.A Habib vs Union of India. The Court laid out that the principle of non-refoulement is encompassed in Art 21 of the Indian Constitution i.e. Right to life and liberty) and there was therefore non-abrogable. This case involved two refugees from Iraq who were being deported to their country, after being found in an illegal residence in the Indian state of Gujarat. The petitioners had fled Iraq to escape forced conscription in the Iraqi Army for their hatred for violence. The Court decided that the two refugees could not be sent back to their country as long as they feared for their life and security. In this case, the Gujarat High Court expressly discussed the concept of non-refoulement, and upheld its validity in the Indian context.

As to why the Supreme Court took the extreme stance of deportation in the presence of such guiding principles, is a mystery. The Government’s interests might be a little more transparent on such a front. Besides a staunch reluctance to allow any more Muslims on the Indian territory, India’s strategic business interests in the Rakhine region too cannot be ignored. India is engaged in what we call a steep race with China over creating infrastructure projects in the mineral-rich Rakhine region. Rakhine is critical to the strategic objectives of both India and China. Kaladan multimodal project, India’s dream connectivity project in the region, originates from the restive state. China, on the other hand, is building a port not far from the Indian built Sittwe port – the nodal point for Kaladan multimodal project – in Rakhine to connect the Bay of Bengal with Kunming province. The project has been included in China’s Belt and Road Initiative. Therefore, stability in Rakhine is as important for India as it is for China. The $484-m Kaladan project plans to connect Sittwe port with Mizoram through multimodal means.

With immense capital and economic opportunities, in the disputed region, the reluctance to sour ties with the brutal Myanmar Government is natural. When the price of Rohingya lives do not make up for the projected profits, the adherence to law and its implementation becomes a mere choice. The Indian Government’s disregard for Muslim lives who are human above all is a tale of concern in itself. The silence of Myanmar over the lives of those deported only cement the worst fears of the ones who have witnessed the history of persecution across time and space.

About the Author:

Esha Meher is the Managing Editor of A38. She is a graduate of the London School of Economics and Political Science and is currently engaged as an associate with Strategic Advocacy for Human Rights (SAHR) in London working on gender and sexual violence in India and Afghanistan. Her research interests include Gender and Theological Studies, Human Rights and Migration. Meher describes herself as a quintessential people’s person. You may find her reading Plath or modern poetry when she is not busy chasing academic deadlines.